FAR 1.102 (d) states: “The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy, or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statue or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.”

This excerpt from the FAR’s Statement of Guiding Principles for the Federal Acquisition System reminds us that our ultimate mission is to provide the best value product or service to our customers. Achieving this mission is often furthered by communications with industry throughout the procurement process, but especially before contract award.

As contracting professionals, a large part of our job is to ensure that industry has a clear understanding of our requirements. Accordingly, we welcome their inquiries and questions and the subsequent communications that result from those inquiries and questions. At the same time, we have an obligation to ensure that the information that we provide does not:

• Afford any one prospective contractor an advantage over another prospective contractor;
• Violate the protections offered industry under the Freedom of Information Act; or
• Release information classified as either source selection information or contractor bid or proposal information.

Sealed Bidding – FAR Part 14

FAR 14.211 addresses the release of acquisition information before solicitation and after solicitation but before contract award. Prior to solicitation, releases of information may be made concurrently to all prospective bidders to preclude one prospective bidder from obtaining a competitive advantage over another.

After solicitation, the Contracting Officer or others with contracting authority may engage in discussions with prospective bidders regarding a solicitation. General information may be provided upon request from prospective bidders. This type of information includes explanation of clauses or contract conditions. More specific requests for additional information or clarification may be furnished by amending the solicitation. Again, these discussions must not provide any information to a prospective bidder that could afford them a competitive advantage over another bidder.

Contracting by Negotiation – FAR Part 15

FAR Part 15.201 addresses exchanges with industry before receipt of proposals. As with sealed bidding, these exchanges take place both before and after solicitation issuance, but before contract award. Early and frequent exchange of information is encouraged, as the Government derives many benefits from these exchanges, including:

• Better Government understanding of the capabilities and concerns of industry
• Better prospective offeror understanding of the Government’s needs
• Better picture of the competitive nature concerning the instant requirement and future similar requirements
• Improved acquisition strategy regarding contract types, performance requirements, performance work statements/statements of work, performance schedules

Prior to issuing a solicitation, the Government may respond to inquiries in one of the following ways:

• Directing them to an upcoming Industry Day or small business conference
• Directing them to a public hearing
• Holding presolicitation conferences/notices
• Conducting one-on-one meetings with potential offerors to provide general information about agency missions and future requirements.

After a solicitation is issued, one-on-one meetings may not be held without the permission and the involvement of the Contracting Officer. Once a solicitation is released, the Contracting Officer is the focal point for the exchange of any information; all questions must be directed to the Contracting Officer or his/her designee. Any specific information released to one offeror pursuant to any inquiry must be made available to the public as soon as possible -- but not later than the next general release of information -- to avoid creating a situation where one potential offeror could obtain an advantage over another. This includes information exchanged at site visits and at preproposal conferences that are open to all parties interested in a particular solicitation. In addition, no information containing proprietary information concerning any other commercial entity may be released (FAR 3.104-4).